Legal Update 11 of 2018

CASE: 

Gerard Jude Timothy Pereira v Kasi a/l KL Palaniappan [2017] 6 MLJ 54

ISSUE: 

How do you prove a friendly loan if there is no written document?

FACTS:

  • Gerard claimed that he loaned Kasi RM2.7m.
  • He claimed the moneys were transferred through telegraphic transfers.
  • Gerard demanded for the return of the friendly loan through two notices of demand. However, Kasi did not reply to the said notices.
  • Kasi admitted receipt of the payments but denied it was a friendly loan.
  • Subsequently, Gerard filed an action in the High Court during which both parties testified on their own behalf.
  • No other witness was called by either party.
  • The High Court dismissed Gerard’s claim on the basis that Gerard failed to prove his claim that it was a friendly loan.
  • Aggrieved by the decision, Gerard filed the appeal to the Court of Appeal.
  • The issue in this appeal was whether Gerard proved that the monies were a friendly loan.

DECISION: The Court of Appeal allowed Gerard’s appeal and consequently               allowed his claim.

 

  • The Court held that once it is proven that monies were given and received, there was a presumption that it was a friendly loan.
  • It was then for Kasi to prove it was not a friendly loan.
  • Kasi was not able to provide any sort of explanation for the sum received from Gerard.
  • The fact that Kasi didn’t respond to Gerard’s demand notice supported the argument it was a friendly loan.
  • Kasi’s explanation for why he didn’t respond to the demand notices from Gerard defied common sense and logic and was not in compliance with ordinary human conduct. 
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